April 12, 2006

Sensitive Litigation Moment-No. 1: "Lonely" Rule 36, Fed. R. Civ. P.

From the standpoint of both the client and its trial lawyer, Rule 36 of the Federal Rules of Civil Procedure, "Requests for Admission", can get things moving in the pretrial discovery process. And to an adversary who isn't familiar with Rule 36 or goes to sleep, it can be a real jolt because of the potentially severe consequences of failing to respond within 30 days. In a nutshell, Rule 36 permits you to serve on another party a request to admit the "truth of any matters" or "genuineness of any documents" described in the request. On factual matters, since Rule 36 is limited only by the liberal precepts of Rule 26, you can ask the other side to admit a wide range of "matters": (1) key but uncontested facts and (2) damaging facts. Failure to answer (i.e., "Admitted" or "Denied") or competently object to the request within 30 days results in the matter being deemed admitted and "conclusively established".

Talk about a wake up call for the other side. In some federal district courts you can immediately file the admissions with the clerk. However, ironically, historically Rule 36 has been used by trial lawyers way less often than other written discovery tools, like interrogatories (Rule 33) and requests for production of documents (Rule 34). Nothing bad happens if you don't meet the 30-day deadlines for these rules--just goofy "lawyer-centric" phone calls, requests for extensions, angry letters, and motions to compel under Rule 37. All of which is usually unproductive and makes even sophisticated corporate clients nuts. But opponents ignore Rule 36 at their peril. Rule 36 is also useful to authenticate documents. Finally, and importantly, you can also combine the requests with related interrogatories and document requests to ensure that the discovery process keeps moving.